[nativestudies-l] NAGPRA WAIVED TO BUILD U.S.-MEXICO FENCE

[jkauanui at wesleyan.edu]

----------------------------
    <http://www.indiancountry.com/>   *NAGPRA waived to build U.S.-Mexico
fence* by: Rob Capriccioso (c) Indian Country Today April 11, 2008. *All
Rights Reserved*   WASHINGTON - The Department of Homeland Security in
conjunction with the Department of the Interior has waived nearly 40 federal
laws, including the Native American Graves Protection and Repatriation Act,
to try to speed construction of a border fence between the United States and
Mexico.

''Congress and the American public have been adamant that they want and
expect border security,'' Secretary of Homeland Security Michael Chertoff
said in a statement, which announced the action April 1. ''We're serious
about delivering it, and these waivers will enable important security
projects to keep moving forward.''

NAGPRA, a federal law passed in 1990, created a legal process for federal
agencies and institutions that receive federal funding to return American
Indian human remains and cultural items to their respective tribes or lineal
descendants.

Sherry Hutt, the national NAGPRA program manager, said she was not informed
that the waiver would happen before it did; she's put in a call to DHS for
an explanation.

''I want to know more about how they're proceeding,'' she said. Several
tribal officials nationwide have said that they, too, were not informed of
this decision.

Officials with DHS say they are trying to be mindful of culturally focused
laws but have found it necessary to make blanket law waivers, since legal
challenges have already greatly extended the timeline to build the
controversial fence between the U.S. and Mexico.

''We will continue to work with tribal nations and tribal leaders to ensure
that we are collaborating before we proceed with any major construction,''
said Laura Keehner, a spokesman for DHS. ''We invite the
government-to-government discussions, and definitely expect that to
continue.''

Under the waiver, more than 55 miles on the Tohono O'odham Reservation in
Arizona would be affected, as well as several miles on lands owned by
individual Indians and on other Indian communities.

In total, the waivers apply to 470 miles of land in a stretch of area from
California through Texas. In making the waivers, Chertoff is striving to
meet a deadline by the end of the year to survey and build nearly 700 miles
of fencing. Three hundred and nine miles of fencing have already been built.


NAGPRA's waiver is but one of several recent DHS moves that are impacting
Native peoples. Several Apache landowners on the Rio Grande in January asked
DHS to halt the seizure of their lands for the U.S.-Mexico border. The
department has declared that it is using the principle of eminent domain to
survey and possibly ultimately take possession of land. DHS is currently
suing the landowners so that building of the fence can proceed.

Despite the lawsuits, Keehner said that DHS is not trying to be insensitive.
She even suggested that the building of the fence could be beneficial for
Indians.

''Quite frankly, Indian country is incredibly [affected] by drugs coming
into communities,'' Keehner said. ''Building this fence is another way that
helps our efforts in keeping out drug dealers, drugs and human smuggling -
so it's really better for the entire homeland.''

Although legislators who support border control are happy with Chertoff's
decision-making, some lawmakers are already questioning the need for blanket
waivers.

''I favor building barriers along the border where border patrol agents
think they will help them do their job,'' Senate Energy Committee Chairman
Jeff Bingaman, D-N.M., said in a statement. ''In fact, I have helped secure
millions of dollars for vehicle barriers in New Mexico. But I have not yet
heard any justification for why the Bush administration cannot abide by
current laws in the construction of this fence.''

Federal law gives Chertoff full authority to mandate such waivers, but some
policymakers are particularly concerned by this most recent instance because
Chertoff provided little reasoning on why they were necessary.

''While the [REAL ID] Act gives the Secretary the unilateral authority to
waive those laws, I always understood that the Secretary would make that
determination only to the extent necessary, after careful consideration and
analysis,'' Bingaman wrote in a letter to Chertoff sent on April 1. ''I
share your desire to improve security along the border and I agree that
there may be certain instances where it is necessary to waive legal
requirements; however, there must be a sound justification for doing so.''

In Chertoff's announcement of the waivers, he indicated that Interior
Secretary Dirk Kempthorne had urged him to take the action.

Bingaman has also written to Kempthorne, asking for ''analyses,
justifications and recommendations'' on why Kempthorne felt the waivers were
so important. To date, he has not received a response.

In March, the Defenders of Wildlife advocacy group and the Sierra Club filed
a petition asking the U.S. Supreme Court to hear its argument against the
REAL ID Act, which grants Chertoff his waiver power. The groups contend that
the REAL ID Act's waiver provision unconstitutionally allows the DHS
secretary unilaterally to repeal laws, which they say threatens the system
of checks and balances assured in the Constitution.

The organizations are currently calling on tribes to file amicus briefs, if
the case were to be heard by the Supreme Court.

''We want to be reaching out to tribes because this waiver process is now
starting to affect laws that affect them,'' said Brian Segee, a staff
attorney with the Defenders of Wildlife. Beyond NAGRPRA, he said tribes
should be especially concerned about Chertoff's waiver of the National
Environmental Policy Act and the National Historic Preservation Act.   
Please
visit the Indian Country Today <http://www.indiancountry.com/> website for
more articles related to this topic.



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